CH. MUHAMMAD MASOOD JAHANGIR , J.---This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed to challenge vires of order dated 05.08.2019, whereby learned Member (Colonies) BoR/ respondent No.2 declined the request of the petitioner for restoration of allotment/ conveyance deed.
9 As per original allotment file (which during course of deliberations was retained to go through history of the case) , the petitioner is a dual nationality holder , who basically hails from Chak No.46/NB, Sargodha and mostly resides in America. He initially approached the Revenue/Colony authorities for the purcha se of State land measuring 05 kanals 10 marlas situated in his Chak, to construct a charitable Hospital however , prior to its culmination the ban on the sale of State land was imposed, whereupon said move though was dropped, yet another desire tabled to purchase land measuring 31-1/4 kanals, bearing square No.38 Killas Nos.23 and 24, Square No.41 Killas Nos.3 and 4 falling within the boundary of Chak No.50/NB for the same purpose, which move was underway; when the petitioner made another request for the grant of long term lease of disputed State land measuring 57-1/2 Kanals comprising Square No.38, Killas Nos. 23 to 25, Square No.41 Killas Nos.3-B, 4 to 7 situated in 50/NB, Tehsil Sargodha. Undisputedly , this chunk of area is abutting Sargodha, Lahore Highway . The then Deputy Commissioner vide Memo No.1546/CA/UCC dated 01.01.1990 while making favourable recommendation forwarded it to the Commissioner and paras 3 and 4 thereof being relevant are reproduced hereunder:--
3. Previously , the proposal for sale of state land comprising Sq. No.38 Killa Nos.23 and 24, Sq. No.41 Killa Nos.3 and 4, measuring 31-1/2 Kanals situated in Chak No.50/NB by private treaty in favour of the applicant for the construction of a private hospital was sent vide this office Memo No.145-C/C'A/ UCC dated 26.01.1988. The proposal was supported and forwarded to the Board of Revenue vide your office Memo No. K-1-14-84(2)14403-4/ CA dated 08.03.1988. Since this land has now been applied for by Dr. Nisar A.
Chaudhary for long lease for the construction of hospital, the previous proposal may be considered as withdrawn.
4. In view of the fact that Dr. Nisar intends to establish an Hospital/Drug Rehabilitation Centre for the general benefit of poor people, it is recommended that the lease of the state land measuring 57-1/2 Kanals (as detailed above) situated in Chak No.50/NB may be granted to him on long term basis at the annual rent of Rs.300/- per acre."
Within next two days on 03.01.1990, the then learned Member (Colonies) forwarded summary to the Chief Minister to the following ef fect:- Briefly the position is that Dr. Nisar Ahmad had applied in 1987 for the sale of 31 Kanals 05 madas of state land comprising killa Nos.23, 24/38 and 3-B, 4, 5, 6 and 7/41 in Chak No. 50/N. B for construction of a hospital and drug rehabilitation centre. The Commissioner recommended the sale at ,Rs.1,50,000/- per acre plus 10% surcharge for sale through private treaty . However the case could not be processed further because of the ban imposed by the Chief Minister on such sales. The Commissioner has again sent a reference (Annexure 'A') in which 57 Kanals 10 Marlas of state land comprising killa Nos.23-25 square Nos.38 and 3-B, 4 to 7 square No.41 situated in Chak No.50/N.B, Tehsil and District Sargodha. But this time he has recommended that 57 Kanals 10 Marlas of state land which was lying vacant and Banjar Qadeem may be allowed to be leased out to Dr. Nisar Ahmad for construction of hospital/drug rehabilitation centre etc. ' at Rs.300/- per acre. Dr. Nisar Ahmad has requested for long lease of land and intends to establish a hospital for the general benefit of the poor people. The land is located on. Sargodha-T alibwala road and is reported to be Banjar Qadeem (Sem Thur). Since the land is being required for good cause we may agree to its lease for 30 years renewable by another equal period subject to satisfaction of the District Collector about proper utilization of the land etc on the usual colony conditions plus the following:--
(i) The lessee will undertake to provide a minimum of 33% bendshvards in each section of the hospital (e.g. Drug Rehabilitation, general surgery , medicines etc.) for free treatment of the poor people.
(ii) Hospital should be managed by a proper committee in which a local representative of the Health Department and District Collector would be included on ex-of ficio basis.
(iii) Market rent will be assessed in accordance with the procedure laid down."
The Chief Minister's Secretariat transmitted it to the Finance Secretary , Punjab, who at his own, felt it appropriate that land should be sold out instead of leasing out for a long term. The same was not only endorsed by the Finance Minister , rather promptly approved on the part of the Chief Minister on 11.02.1990. Consequently , Colony Secretary issued Memo dated 17.02.1990, wherein specific clause 'b' qua completion of proposed Hospital within specified time was particularly inserted to the following ef fect:- "The construction should be completed within 2 years from the date of issue of these orders failing which the land shall be liable to be resumed."
The District Collector within next couple of days on 26.02.1990 attested the Conveyance Deed to award the land to the petitioner . It was a hard fact that construction was not started within the period provided through Memo dated 17.02.1990. The petitioner in 1994 directly made application before Chief Minister asserting that he had no sources to run the Hospital and prayed for the withdrawal of clause 'b', which promptly was accorded through issuance of letter dated 02.01.1994, even without fetching any report or consulting the Colony Department/BoR. As a result thereof, clause 'b' qua construction period was waived off by the Secretary (Colonies) vide letter dated 09.01.1994.
The BoR, who in the Province was custodian of the State land kept mum, however , thanks to a public pro bono, who via W .P No.16310/1995 brought such malpractices before this Court, which unfortunately was not decided on its merit, rather the moment on 07.12.2000, petitioner undertook to complete the Hospital within next three years, it was simply disposed of. The petitioner did not honour his assurance made before the apex Court of the Province, compelling the same pro bono to blow the whistle another time by filing Contempt Application (Crl. Original No.151- W/2004) before this Court. The same once again was not culminated on its merits, rather while disposing it of on 22.12.2006 present petitioner get extra six months to complete the project. The relevant part of said order is reproduced here:- "Reply filed by the respondent has been examined. He has undertaken in very clear terms that he will abide by the undertaking given by him in court and has explained delay in commencing completion of the project of the proposed hospital. He has further undertaken that he will take all efforts to comply with the said undertaking is disposed of with the direction to the respondent to take all steps to commence and complete the construction of the said hospital as already undertaken by him before this Court. Needful to be done within six months from today . In case of any delay , explanation to be filed in this Court"
Now the scenario/regime might have changed or some man of character was posted in the BoR, that Province of the Punjab for the first time brought said proceedings before august Supreme Court via Cr. P.No.282-L/2007 where through interlocutory order dated 07.09.2007 not only the petitioner was put under show cause notice, but the State was also let free to cancel the transaction. The relevant part of said interim order for ready reference is reproduced as below:-- "The explanation tendered being reasonable, condoning the delay , petition is entertained for hearing putting Dr. Nisar A. Chaudhry , respond ent No.1 under notice to show cause why the procured sale of the spelt out state land at a through away price exclusively for setting up of a hospital/drug rehabilitation centre within a period of two years construction whereof till date has not even commenced despite indulging into entangled litigation for 17-1/2 years putting off the construction., through devious means for unjust entrichment at the cost of the exchequer in violation of the sole object for which the same was bestowed, including procurement of extension through criminal original proceedings without impleading the petitioners as a party , which too stands exhausted. Notice be issued for the first week of the next roster . Meanwhile further proceedings before the Lahore High Court in Writ Petition No. 2198/2007 for the acclaimed demarcation apparently designed to cover up the delay are injuncted with a right to the petitioners to take such actions as may deem appropriate in accordance with law, and, in the event the same lead to cancellation of the transaction, the land should be sold through public auction with a right to the respondent to participate therein."
Being aggrieved of show cause notice, the petitioner filed I.C.A. No.6 of 2007 before the apex Court, which along with Cr . P. No.282-L/2007 was finally disposed of on 05.01.2016, while concluding as under:-- "We have been informed by the learned Assistant Advocate General, Punja b appearing for the State that the State land sold to the appellant on 17.02.1990 has already been resumed vide order dated 26.09.2007 passed by the Member (Colonies), Board of Revenue, Punjab, in view of this development the order passed by this Court on 03.10.2007 in Criminal Petition No.282-L of 2007 is hereby recalled and the notice issued to the appellant to show cause as to why he may not be punished for contempt of this Court on account of attempting to interfere with the administration of justice is hereby withdrawn. In view of recalling of the impugned order passed by this Court on 03.10.2007 the present Intra Court Appeal filed against the said order has lost its relevance. This Intra Court Appeal is, therefore, disposed of as having become infructuous.
Criminal Miscellaneous Application No.07 of 2016 in Criminal Petition No.282-L of 2007.
2. This miscellaneous application is allowed and the documents appended with the same are permitted to be brought on the record of the main petition. Disposed of Criminal Petition No.282-L of 2007.
3. As the land in issue has already been resumed by the Board of Revenue, Punjab on 26.09.2007, therefore, the learned counsel for the petitioners does not press this petition. This petition is, thus, disposed of as having not been pressed. It goes without saying that if respondent No.1 has assailed the above mentioned resumption of the relevant land or intends to assail the same before any Court or forum then any challenge made or to be made by him to such resumption shall be decided on its own merits without in any manner being influenced by anything observed or done by this Court in the present proceedings."
3. No doubt in the meantime, as already observed by the august Supreme Court in its order dated 07.09.2007, just as an afterthought to groom the afore-noted cases pending before august Supreme Court, the petitioner preferred Writ Petition No.2198/2007 before this Court with the following prayer:-- "It is, therefore, most respectfully prayed that the writ petition be accepted and respondent No. 7 be directed to finalize the demarcation proceedings so that the petitioner may proceed to complete construction as undertaken by him before this Hon'ble Court. however , when apprised that in compliance of above noted interim order of the apex Court, the allotment/conveyance stood already cancelled/rescinded, the petitioner ultimatel y withdrew the said petition on 21.01.2008. He in series preferred three Writ Petitions to assail cancellation of his allotment. This Court in earlier two petitions, remanded the matter to the learned Member (Colonies) BoR for decision afresh, who each time maintained his earlier verdict and on third occasion, when the incumbent Authority once again endorsed its earlier decision passed against the petitioner as disclosed in para 1 ante, the latter another time has filed petition in hand.
4. It would be pertinent that after the resumption of subject land, it was awarded to the Punjab Employees Social Security Department-respondents Nos.12 and 13 for the construction of Hospital. The. Government of Punjab has also released 5 billion rupees for the said project, which is under construction at site and this action has also been impugned through petition in hand.
5. Arguments heard and available record scanned minutely .
6. The petitioner does not seem to be a common individual, whose influence is vivid from the proceedings initiated by the Deputy Commissioner , Commissioner , under Secretary Colony , the Finance Secretary as well as the then Chief Minister . The petitioner started his demand for purchase of just 5-1/2 Kanals in his own Chak, which afterwards increased to 31-1/2 Kanals and lastly to 57-1/2 Kanals in another Revenue Estate. The most valuable chunk of land facing to Highway was thrown away to him just for peanuts. It migh t be a classical case, where the demand was made by the seeker for lease of land, but without letting him to amen d his desire or even taking into confidence the relevant Authority/BoR, the Secretary Finance, who had none of the business with the private project, proposed for permanent transfer of the State land so that a blue-eyed could be accommodated over and above to his own request. Our society is civilized one and governed by law and law alone. There must be a system of check and balance. None is above the law, whereas all public powers being trust are to be exercised/ performed within limits of relevant enactments/statutes. The Chief Executive/ Chief Minister has not been assigned any role in the relevant laws to allot/lease or sell out State land at his own whims. Moreover , the execution of Conveyance Deed for agricultural purposes was another violation towards the alleged specific sale for construction of purported' Hospital. It might be so to cause loss to the public exchequer . Anyhow , it was fortune of the petitioner that in first Writ Petition made against him on behalf of a public pro bono, the same was not culminated on merit for its logical end. The petitioner played a trick there while giving undertaking to complete the Hospital within next three years. No doubt, the Writ Petition was disposed of, but to me, the clause 'b' was revived a while extending another three years from the day when petitioner tendered assurance. It was either pity on his part or he was so confident that the Courts of law would not take any action against him, therefore, he dared to ignore his own assurance while not starting the construction in the period extended by the Court. Pursuant to contempt petition, he once again was awarded another six months' period at his second commitment, even then he failed to install a single brick.
Everything could be ignored, but a free promise/undertaking of his own choice, could not be left unnoticed, otherwise, not only belief of the public will be shaken from the judicial system, rather the respect and command of the Court would seriously be attenuated. It is well established rule that conduct of the litigant before Court of law is very relevant to award or refuse the relief claimed for. It was petitioner; who voluntarily undertook twicely to complete the project within extended time of his choice. This assurance attached sanctity and thereby principle of estoppel not only came into play, rather clause 'b' stood restored with allied penal consequences entailed therein, as such the sale ispo facto was no more when the extended period expired.
7. The emphasis of Mr. Waqar A. Sheikh , learned counsel for the petitioner that area was encroached upon by some unknown persons or it was not demarcated, therefore, the construction work of building could not be started, seems to be mere an afterthought. At relevant time, when period was specified in clause 'b' it was never complained, which at the most should be uttered, when he tendered his first undertaking. He even did not explore said pretext, when second time he was awarded more period per his additional undertaking. Thereafter , any such ground was not liable to be considered. As far as assertion of learned counsel for the petitioner that his client being very well off is eager to serve the general public is concerned, suffice it to say that decades have passed since the purchase of State area, but no positive steps initiated to achieve the desired goal. He while seeking waiver of clause 'b' himself asserted just within four years of the issuance of Conveyance Deed that he had no resource to run the Hospital, which clarified his own intention. Even if it is taken to be correct that petitioner has good financial status, he may start his private project over his owned which definitely will be a more pious deed. Moreover , clause
(f) of para 2 in the aforesaid Memorandum dated 17.02.1990, which reads as under:--
(f) The Hospital authority shall provide 33% of beds in action/ wards for free treatment of the poor ." obviously discloses that the hospital was not to be used for cent percent charity , but only 33% of its resources were to be utilized on the poor patients, whereas rest of 67% income was to be derived by the petitioner/ owner . In contra the Project, which is under construction on behalf of respondents Nos. 1, 2 and 13 is meant for treatment of general public free of costs, wherein the additional clause also exists allowing any person of the civil society to make donation for the said noble cause and if the petitioner is still willing for charity , may add funds in the underway assignment for his ultimate reward.
8. As a matter of fact, the instant lis was partly heard five days earlier , when to check his bona fide, the petitioner was; asked verbally to deposit amount intended to be invested on the project till today , but he made C.M. No. 2 of 2021 for extension of time, which otherwise shows his paramount desire to cause further delay in the construction work of the Hospital, therefore, it is declined.
9. Another C.M. No.8/2020 was filed for impleadment through Mr. Nadeem Ahmad Sheikh, Advocate, who has opted not to press the same on merit any further , which stands disposed of accordingly .
10. For the history/reasoning narrated in paras. 2 to 8, the writ petition in hand has absolutely no merit, which is dismissed with the addition that amount already deposited by the petitioner be also forfeited for its deposit to public exchequer , so that such like malpractices may be avoided in coming days.